Morrison v. Morrison Estate, (2012) 325 N.S.R.(2d) 234 (SC)

• Judge: Murray, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 31, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 325 N.S.R.(2d) 234 (SC);2012 NSSC 451

Morrison v. Morrison Estate (2012), 325 N.S.R.(2d) 234 (SC);

    1031 A.P.R. 234

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.041

Kenneth Morrison (applicant) v. The Estate of Helen Morrison, and its Personal Representative, Dan Alex Morrison (respondent)

(SPH389094; 2012 NSSC 451)

Indexed As: Morrison v. Morrison Estate

Nova Scotia Supreme Court

Murray, J.

December 31, 2012.

Summary:

Kenneth Morrison moved to remove his brother (Dan) as the executor of their mother's estate, to have himself appointed as the replacement executor and to have estate property conveyed to him in accordance with the mother's will. Kenneth also appealed a decision of the Registrar of Probate respecting the taxation of the bill of costs charged to the estate by its counsel. The application and the appeal were consolidated and heard together.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the application and the appeal. The estate and Dan sought solicitor and client costs from May 4, 2012 onward (costs prior to that date having already been fixed).

The Nova Scotia Supreme Court ordered that the estate was to have its fees paid at the rate of 75% of the amount billed, plus disbursements, plus HST. The court also awarded $3,000 for the two day hearing.

Executors and Administrators - Topic 5541

Actions by and against representatives - Costs - General - The Nova Scotia Supreme Court reviewed its authority to award costs in estate and probate matters and stated that "In Estate litigation, the Estate's legal costs are generally reimbursed on a solicitor-client basis. This is most obvious in Will matters, and in particular, the interpretation of a Will, for Executors have no personal interest in the outcome, and no other source of reimbursement for their legal expenses. In other matters, unless the Estate has involved itself in frivolous and vexatious litigation, it will normally be the case that the Estate's legal costs are reimbursed in full. ... This is not a departure from the Rule that the successful party should have their costs paid by the unsuccessful party. It depends on the circumstances and whether the Estate had a legitimate reason for being involved in litigation. For example, if the successful party is the Residuary Beneficiary, the successful party could end up paying the unsuccessful party, if costs were paid by the Estate, either on a solicitor-client, or a party-party basis. Conversely, if the Testator or Residual Beneficiary were the cause of the litigation, then the Estate may properly be held to be responsible for payment of the costs. Arguably, costs of litigation for an Estate are paid by the Estate, unless involving the Estate was frivolous and without merit. Whether a party's involvement could be credibly argued, and whether the party's position was reasonable, having regard to the outcome, are valid considerations." - See paragraphs 13 to 19.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See Executors and Administrators - Topic 5541 ].

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - [See Executors and Administrators - Topic 5541 ].

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - Kenneth Morrison moved to remove his brother (Dan) as the executor of their mother's estate, to have himself appointed as the replacement executor and to have estate property conveyed to him in accordance with the mother's will - Kenneth also appealed a decision of the Registrar of Probate respecting the taxation of the bill of costs charged to the estate by its counsel - The application and the appeal were consolidated and heard together - The Supreme Court dismissed the application and the appeal - The Nova Scotia Supreme Court concluded that exceptional circumstances existed to allow it to award the estate solicitor and client costs - Kenneth's numerous and serious allegations, including that Dan and the estate counsel deliberately complicated a simple estate to increase legals fees for billing purposes and that Dan acted unreasonably in not accepting an undertaking from Kenneth's solicitor to pay the estate expenses, were not well-founded or supported by the evidence - Kenneth's suggestion that Dan had sought to gain personally demonstrated a degree of malice towards Dan - On the taxation appeal, Kenneth had made a reasonable argument, even though the court rejected it in the end - Having regard to the estate's relatively small size, Kenneth's ill-health, and the fact that while Kenneth should have known better than to make unfounded allegations, he apparently had not, the court directed that the estate was to have its fees paid at 75% of the amount billed, plus disbursements and HST - The court also allowed $3,000 for the two days of hearing - See paragraphs 20 to 37.

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs or solicitor and his own client costs - [See Executors and Administrators - Topic 5541 and second Executors and Administrators - Topic 5550 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Executors and Administrators - Topic 5541 and second Executors and Administrators - Topic 5550 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See second Executors and Administrators - Topic 5550 ].

Cases Noticed:

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107 (C.A.), refd to. [para. 19].

Fort Sackville Foundation v. Darby Estate (2010), 287 N.S.R.(2d) 164; 912 A.P.R. 164; 2010 NSSC 45, refd to. [para. 19].

Hamilton v. Open Window Bakery Ltd. et al. (2004), 316 N.R. 265; 184 O.A.C. 209; 235 D.L.R.(4th) 193; 40 B.L.R.(3d) 1; 2004 SCC 9, refd to. [para. 22].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.), generally [para. 19].

Counsel:

Darren Morgan, for the Estate of Helen Morrison;

Hugh R. McLeod, for Kenneth Morrison.

This matter was heard by way of written submissions received on September 4 and 26, 2012, by Murray, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 31, 2012.